The shared home when you are no longer a couple.

The most common misconception: “We are married, so everything belongs to us jointly.” That is not true. The owner is whoever is on the land register. If both names are there – usually half each – the flat belongs to both. If only one is there, it belongs to that person alone, even if the other has paid the instalments for years.

What marriage regulates is equalisation of accrued gains (Zugewinnausgleich): whoever built up more wealth during the marriage pays half the difference to the other on divorce – as a cash payment, not as a share of the property. A flat that belongs to one partner alone is therefore not split, but its rise in value since the wedding goes into the calculation. What was there before the marriage, or was gifted and inherited, counts as starting assets and is not equalised.

Before the divorce comes the year of separation – and with it the question of who remains in the shared home. In law both may stay during that year; in practice one usually moves out. Worth knowing:

• The loan continues. If both signed the mortgage, both remain liable to the bank – regardless of who still lives there. Private arrangements (“you pay, you live here”) do not bind the bank.
• Occupation payment. Whoever moves out can claim compensation from the partner who stays for exclusive use – roughly half the locally customary rent. During the year of separation it is often not claimed; afterwards it almost always is.
• Children. If children live in the household, the court can assign the home to the parent who cares for them – even if the other is the owner. That is a use arrangement, not a transfer of title.

Our advice from many separation sales: settle in the year of separation what should happen to the home, but do not sell under pressure. A flat offered in the middle of a dispute rarely achieves the best price.

1. One takes over

One partner keeps the flat, pays the other out and takes on the loan alone. For that the bank must release the other from liability – it checks the remaining partner’s finances as if it were a new mortgage. The pay-out is based on value minus outstanding loan, divided by two. Advantage: no move, no sale costs. Disadvantage: the person taking over carries the whole burden alone, often at a higher rate of interest.

2. A joint sale

Both sell, redeem the loan and split the rest. The cleanest cut, and in Berlin usually the one that also brings the best price – provided both pull in the same direction. Budget for a possible early-repayment charge from the bank if the loan is still in its fixed-rate period.

3. Let it together

Anyone who does not want to part with the property, but does want to part with the partner, can let it. It only works for couples who can still deal with each other factually as co-owners – every repair, every rent increase needs both signatures. Rarely a good lasting solution.

4. Transfer to the children

In some families the flat is transferred to the joint children, combined with a right of residence for the parent who cares for them. Attractive for tax, but complex – only with a notary and tax adviser.

Avoid: the court partition sale

If the couple cannot agree, either co-owner can apply to the local court for a partition sale. It is the most expensive route: the process often takes more than a year, the court sets the value by survey, and bidders at forced sales typically pay well below the open market. Both lose. Threatening it is common in negotiations – actually doing it should be the absolute exception.

Almost every dispute about the property is at heart a dispute about its value. Whoever stays wants it low; whoever leaves, high. Two parties, two agents, two figures – that is how deadlock starts.

That is why we recommend: one valuation, instructed by both, with the result to both at the same time. We show which comparable sales we use, and explain the same numbers to both sides. This is not a court-proof valuation – only a sworn expert provides that, for around €1,500 to €3,000 – but in most cases it is enough to reach agreement.

Important for the sum: from market value you deduct the outstanding loan, any early-repayment charge and – on a sale – the selling costs. Only then is the rest split. Whoever takes over should also negotiate a discount for the selling costs they will bear alone on a later sale.

Record the result in a notarial divorce-consequences agreement. It covers transfer, pay-out, taking on the loan and equalisation of gains in one document and saves a contested procedure.

Capital gains tax on a transfer. Transferring your share to the ex-partner is a “sale” for tax – even if no money changes hands, only a set-off in the equalisation of gains. If the purchase was less than ten years ago, income tax can arise on the gain. The exception for owner-occupied homes does not, according to the Federal Fiscal Court, apply if the person transferring has already moved out and only the other partner still lives there with the children. That surprises many – clarify it before you sign.

Property-transfer tax. A transfer between spouses is tax-free, as is a transfer as part of the financial settlement after divorce. For unmarried couples the full Berlin property-transfer tax is due – a strong argument for a joint sale rather than a take-over.

Early-repayment charge. If the loan is redeemed early on sale, the bank claims compensation for lost interest – with a low contract rate and a long remaining term that can be tens of thousands of euros. Ask for the actual figure in advance; sometimes it is cheaper if the buyer takes on the loan, or if the sale is delayed a few months until the end of the fixed-rate period.

Notary and land registry. Transferring a share costs about 1.5 to 2% of the transferred value in notary and land-registry fees. On a sale to a third party the buyer bears these.

We have sold many flats for couples who no longer wanted to sit in the same room. It works if the process follows a few rules:

• One contact for both. Both owners receive the same information at the same time – every offer, every update, every note. Nobody hears first.
• Decisions in advance. Asking price, floor, timetable and how offers are handled are agreed in writing at the start. Then there is nothing left to negotiate during marketing – including between the partners.
• Viewings without the owners. We run the appointments, take care of the flat for the photos and keep the occupier’s daily life out of it as far as possible.
• The notary as a neutral place. The purchase contract and the split of proceeds are handled by the notary; payment to both accounts can come straight from the purchase price, so nobody has to transfer money to the other.

If you wish, we speak to each of you separately first and then together. The first step is always the same: an honest figure that both of you know. The valuation is free of charge.